Saturday, June 27, 2009

Wherein We All Get Free Rifles And Ammunition

Over at the Coalition To Stop Gun Violence website, there is a post up on recasting the Second Amendment as a mandate for militia service. If executed faithfully, this would be a great idea, since every able-bodied male (probably females too, given sex-discrimination jurisprudence) would get a militia-compatible rifle, possibly a pistol, and a bunch of ammunition out of the deal. This new twist on gun control would actually increase the availability of guns and call into question the validity of any “assault weapon” legislation, since those are exactly the arms required for militia service.

The post says that Heller somehow provides a mandate to register all guns and, a la the Militia Act of 1792, all citizens would be enrolled in the militia. Apparently this is supposed to ban private sales of firearms and stop guns going down to Mexico.

A faithful return to the militia model of the early Republic won’t happen. However, the idea merits some discussion. I will cover the firearm implications, how a reduced standing army might impact our foreign policy, and what this new militia model is really about.

Uniform Militia Firearms (Rifles for Everybody)

When you read the Militia Act of 1792, you find that a good deal is about dictating force structure and armament of individual soldiers. If we are to move to a Swiss-style militia, this means our firearms and ammunition have to be compatible. And paid for by Uncle Sam if you can’t provide your own.

I’m not pulling this out of thin air. During my time in Afghanistan, I recruited, trained, and led a 128-man force of local militia in combat. I also trained, advised, and assisted three companies (about 200 men) of Afghan National Army soldiers at the Pakistani border.

When my detachment first began recruiting fighters, we had a room full of outdated and decrepit guns in odd calibers and very few magazines or machine gun links to string our bullets together. We didn’t have many bullets either.

My collection of oddball World War II-era machineguns was insufficient. I needed modern calibers, modern rifles, and compatible magazines. A renewed citizen militia would need the same.

This mathematical combination of Miller (the government can prohibit unregistered ownership of firearms unsuitable for militia service) + Heller (individuals have the right to keep and bear arms) dictates that privately-owned rifles be compatible with what our soldiers have.

The first requirement is ammunition. Militia rifles must be chambered in standard NATO calibers. If you want to get a large caliber hunting rifle, that’s on your own dime. Pistols would have to be chambered in 9mm or .45. Since these are the calibers the military stocks, we would have these available for citizens to practice with when they attend militia drills.

The second requirement is magazine compatibility. Magazine compatibility for pistols is not a strict requirement; the military purchases pistols from a number of manufacturers. Rifles are a different matter. Citizens would have to be able to feed their rifles with the 30-round magazine designed for AR-15 rifles, which are semi-automatic versions of our standard service rifle.

The other feature (or bug, to some) is that the federal government would provide weapons for those that could not afford them. As David Hardy notes, the Virginia Militia Act did this and the deliberations over the federal law took this into account; it was deemed unnecessary since there were so few men who did not have arms. That is not the case anymore – time for a bailout of the unorganized militia!

Reduced Standing Army

Our new “Homeland Security Militia Reserve Act” would have the advantage of making the United States impossible for a foreign army to invade and occupy. If we returned to the small standing army associated with our nation’s early days, we would also take ourselves out of the world policeman business.

The Militia Act of 1792 made sure we had decent defensive capabilities but limited our ability to engage in expeditionary warfare. The militias called up for the Spanish-American War trained up but many fought their deployment orders because they would be overseas when their mobilization periods expired. Several protested any deployment outside of their state borders.

The federal government responded by passing the Militia Act of 1903, also known as the Dick Act. The Dick Act moved state militias toward our modern National Guard model, with mandatory drills, annual training exercises, and unit inspections by regular army officers.

Later reforms further federalized the President’s control of part-time soldiers. Reserve units are completely under federal control. The National Guard and Naval Militia make up the “organized militia.” Though these are state units, the President trumps the state governor when they are federalized. Perpich v. Dept. of Defense. Able-bodied males and female members of the National Guard make up the “unorganized militia.”

The only units that remain under state control are State Defense Forces, state-organized units often made up of volunteers. Perpich makes the point that even these could be subject to call-up under federal statute.

So, a move to a militia system is a major restructuring of our military and might be a good thing. A return to universal part-time service and the limitations of a real “homeland security” militia make it impossible for us to wage wars of choice. There's no way you could convince the citizen-soldiers that we need to head off to another Somalia or impose peace in Darfur.

The Real Motive

Now that we’ve explored the real implications of a return to the traditional militia model, what is this all really about?

Gun control. This is explicit in the Coalition to Stop Gun Violence post: “There are no libertarian individual rights in a conscript military organization.” Once you own your guns pursuant to the federal militia authority, the chain of command makes gun control pretty efficient.

The problem with this idea is that it misreads Heller. Or doesn’t read Heller. It’s not like the answer is buried in a footnote. You can’t get past the syllabus without finding a flat refutation of this militia model. “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

Sorry if the title got your hopes up. I doubt a Second Amendment stimulus is in the works.

About Me

I am a former Special Forces soldier, International Defensive Pistol Association Master-Class competitor, and an attorney in Virginia. I teach NRA certified handgun courses and specialized concealed carry courses on the side. This blog focuses on lawfully carrying a concealed handgun, pistol competition (IDPA and
USPSA) and the legal aspects of self-defense. The views expressed on this blog are solely those of the author.

DISCLAIMER:I am not your lawyer. You are not my client. The information provided on this blog is for informational purposes only.Readers agree to hold harmless the author of this blog and Defensive Force Instructors, LLC.